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[The item below, from Martin Marty's "Sightings," deals with an issue with which some recent MOJ postings have dealt. --mp]

Sightings 1/31/05

Club
Evangelical-- Martin E. Marty

James Madison, who had a thing or two
to do with constitutional matters in the early republic, wanted a "line of
separation" between "the rights of religion and the Civil authority." At a
recent workshop where I elaborated on that theme, a colleague persuaded me that
my views on this line are "messy." That's not a bad description for what I
think the nation's Founders brought to the matter and what they left us
with. We did not have, do not have, and will not have "absolute
separation," nor will we ever clearly and permanently "solve" issues along that
line. Fierce as one may be (and as I indeed am) about "non-establishment"
of religion and other such issues, it is not realistic to think one can draw an
"absolute" line. A person wanting to do so would start tomorrow by legally
ending tax exemption for religious properties and institutions. Not a
single member of Congress could get re-elected with that in her
platform.

Sometimes cases reaching the U.S. Supreme Court achieve
clear resolutions and definitions, but usually things are messy. That
calls to mind the newest messy-lined case, detailed best in Burton Bollag's
recent story "Choosing Their Flock" in the
Chronicle of Higher Education (January 28, 2005). The article's
subhead says that "conservative Christian groups have forced colleges to allow
them to bar gay students and nonbelievers." But now major institutions are
fighting back. It would be a good time to be a lawyer on either side,
though this is the kind of battle for which the concept of "pro bono" was
invented. Voluntary associations of conservative Christian legal experts
are on the front line. Want to take them on? Be prepared for
rough-and-ready argument. Prefer to side with the opposition? You
must not have met the informed and motivated legal and activist agents of
pro-gay groups.

Barring gays and non- or other-believers clearly
violates institutional rules and, almost as clearly, the laws behind them.
Those rules and laws prohibit discrimination on the grounds of race, religion,
sex, disability, and other factors. Exclusion on the basis of sexual
orientation is barred on hundreds of campuses, especially public ones. And
since almost all private colleges also receive tax funds in one form or another,
the same rules and laws apply there. If the world were not messy, the
schools and the law would simply draw a bold, clear, and unwavering line between
"the rights of religion" and "the Civil authority," and here see the civil side
winning. Ah! But then come profound religious reactions: What
happens to "free exercise" if "we" are not permitted campus locations,
acknowledgments, and sanctions?

You haven't seen anything yet. Wait until the
Muslim student causes get activated on this front. There are, after all,
many "out" evangelical gays and many more closeted ones, and there is room for
debate -- indeed, there is debate -- on this issue among
Christians. But the Muslim rejection of homosexuality and homosexuals is
absolute and vehement. Will the campus laws support them?

The Chronicle story tells of some efforts by
thoughtful leaders, for instance at Ohio State University, where conversations
on this matter occur even when there is no basis for agreement. They are
trying to remain civil and humane across the messy line.

Do not envy the judges who have to decide this
issue as it makes its way up, as it surely will, to the U.S. Supreme Court,
which stands very little chance of getting a "civil" and "humane" response from
publics, whichever way it rules.